Anticipate This!™ | Patent and Trademark Law Blog

PTO Community Examination Project

Posted in General Commentary, Practice Commentary by Mike Dockins on March 7, 2007

As many may know, the Patent and Trademark Office is starting a pilot project for the community examination of patent applications. The project is scheduled to begin in the spring and evolved from meeting attended by the top recipient of U.S. patents for 14 years running, IBM, and New York Law School Professor Beth Simone Noveck. The patent applications will be posted on the Web and comments on the application will be invited. Further, a community rating system is part of the posting process and is designed to highlight the best comments for serious consideration by the Examiners. Registered participants for the project will vote on the information submitted, and the top 10 items will be passed on to the Examiner for consideration.

Similar to the feedback system utilized by Ebay, the system will separate experts in the field of the application and in patent prosecution from neophytes by offering extensive details about the information contributor. To help others evaluate the prior art cited against a patent, each posting will include measures gauging the quality of his other contributions to the site, such as “gold stars” given by the Examiners to contributors who have previously submitted useful information in prosecution of a previous application.

The implications for the project, if ultimately adopted on a full-time basis, are numerous. First, the level of gamesmanship between business rivals could reach a new level; each business may try to invalidate the other’s application to prevent them from obtaining “the next big thing”. Second, a patent application that may normally issue into a patent may now be blocked by an obscure piece of prior art found during the community review. Third, and arguably most importantly, under the “watchful eye” of a community of experts and novices, a massive amount of prior art previously unavailable to an Examiner may become available delaying prosecution and increasing the cost thereof, possibly to the detriment of small business.

On the other hand, the project may be beneficial. Presumably, any patent that issues after running through the project would be a strong patent having survived a more rigorous prosecution. Also, any company that allows its “next big thing” to be a part of the prosecution would certainly get some publicity and attention on the web. Such attention may be beneficial in gaining brand recognition, market share, and an increased perception of the innovation and R&D of the business.

The Community Examination Project should be a fun experiment, so hold on… it should be a fun ride.

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